Criminalizing HIV Transmission – Wise Law or Hysteria’s Consequence?

ByLindsey Moon |February 9, 2012

Spend a few minutes with Donald Bogardus, and you probably would never imagine that he would even think of hurting another human being.

He speaks with a lisp and walks with a limp due to cerebral palsy, but his warm smile and friendly demeanor puts others at ease. He works as a nurse’s assistant at a nursing home in Waterloo, is active in his church and cares assiduously for his pet goldfish, Survivor.

Yet Bogardus is an accused felon, facing up to 25 years in prison and a lifetime as a sex offender, because he was afraid of losing a friend and kept a secret from him. Bogardus is HIV positive and gay.

Donald Bogardus

“I wanted to tell him,” Bogardus recalled, “but when I went to say it, I clammed up. “So many things came across my mind. I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.”

Now, he is charged with criminal transmission of the human immunodeficiency virus (HIV), because he didn’t reveal his secret. Iowa’s HIV criminal transmission statute was applied to Bogardus, because it requires people carrying HIV to inform their partners before they have sex.

Bogardus’ case exemplifies what critics see as major flaws of many of these laws.

Law Has Many Critics

The criticisms come from public health authorities, medical caregivers, legal analysts, legislators and activists who say the laws are counter-productive and discriminatory.

The days when HIV was considered a death sentence are long past, experts say, but legal measures lag far behind current medical knowledge and treatment. At both national and state levels, campaigns to roll back these laws have gained momentum over the past year, and the issue is likely to arise in Iowa’s current legislative session.

Bogardus didn’t actually transmit the virus, nor did he intend to do so. He takes anti-retroviral drugs that make transmission highly unlikely, but none of those things matter. So, in December 2009, he became an accused felon.

Bogardus’ case shows how complicated and even painful disclosure itself can be. In retrospect he says he would do things differently. He didn’t tell his partner his status because he was afraid of what kind of reaction he would get, not because he wanted to spread the virus.

Bogardus says he wanted to use a condom, but his partner refused. That doesn’t matter under the law. Even if they had used protection, Bogardus still could have been prosecuted.

Current Law Called Outmoded

Iowa is one of 34 states and two U.S. territories that have criminalized HIV transmission, and one of a subgroup of states that prosecute simply for non-disclosure of HIV positive status prior to intimate contact.

Catherine Hanssens, www.thebody.com

Catherine Hanssens, director of the New York-based HIV Center for Law and Policy, calls the policies underlying most HIV transmission laws “decades out of date,” and says a much more nuanced approach is needed. “Most laws treat HIV like it is transmitted with ease,” she said. “With modern medical knowledge, we understand that this is just not the case.”

Sean Strub, an Iowa City native, nationally known HIV/AIDs advocate and founder of the magazine POZ – standing for HIV positive – says that even among consenting adults, Iowa’s law allows individuals to place responsibility for personal sexual health entirely on a partner.

He says it is just as important for an HIV negative person to take measures to protect him/herself from getting HIV as it is for a positive person to prevent spreading the virus. In Strub’s view, the law undermines the public health goal that all people take responsibility for their own health.

“It’s the arrogance of the well,” he said. “People who don’t have HIV should be just as responsible for not transmitting HIV as the people who aren’t healthy.”

Critics Push for New Law

In Iowa, with support from state public health officials, critics are lobbying the legislature to reword the law so that it requires both intention to transmit and actual transmission. Reformers also want the type of sex act, condom usage and viral load – a measure of the level of the virus in the system – taken into account in any decision to prosecute.

Although transmission of HIV by a person with an undetectable viral load is not entirely impossible, it is nearly so even with risky unprotected sex. The chances are infinitesimally small with less risky acts. “When having oral sex with someone with an undetectable level, it’s probably more likely that you would win the Powerball than transmit HIV,” said Dr. Jeffrey Meier, a University of Iowa physician and AIDs specialist.

Changes sought in Iowa’s law would dramatically alter patterns of prosecution in the state. They would mean someone like Bogardus — whose anti-retroviral medication essentially deactivates the virus in his body, and who neither transmitted nor sought to transmit the virus — would not be facing charges that carry penalties comparable to those for second-degree murder.

Research by the HIV Center for Law and Policy puts Iowa second only to Tennessee in number of prosecutions related to HIV, an especially startling ranking given Iowa’s relatively low prevalence of HIV compared to other states.

Iowa court and public health records show that 25 individuals have been charged with 37 counts of criminal transmission of HIV since the law took effect in 1999, and 15 of these defendants have been convicted on a total of 25 counts.

The state has been particularly aggressive in prosecuting cases for exposure rather than actual transmission of the virus. At least four victims in Iowa cases have contracted the virus, but in most cases no transmission is documented.

Iowa Law Tougher Than Most

Iowa’s law also carries unusually harsh penalties. Violations are class B felonies, and those convicted face up to 25 years in prison and lifelong registration as a sex offender.

In Illinois, a state with a similarly worded law, the most severe sentence for HIV transmission is seven years. In California, a state with the second highest number of reported cases of AIDs in the nation, the maximum sentence is eight years.

Within Iowa, HIV-related prosecutions have occurred in nine of the 99 counties. The largest concentration, with five prosecutions, is in Black Hawk County, where Bogardus lives and works.

Borgadus’ case has a recent precedent: Nick Rhoades, prosecuted in Black Hawk under similar circumstances in 2009, was convicted, sentenced to 25 years in prison and placed on the sex offender registry for life. Like Borgadus, Rhoades allegedly had consensual sex with another man without disclosing his status, did not actually transmit the virus and had an undetectable viral load. Rhoades used a condom, further decreasing the almost impossible chance that he could transmit HIV.

Nick Rhoades

Rhoades appealed his conviction, and his sentence was amended. He ended up spending about a year in prison and upon release moved to Texas to find work. But he remains on Iowa’s sex offender registry. Rhoades already has a history of struggle with depression. He and his supporters say his life has been upended.

The current campaign to persuade Iowa lawmakers of the need for reform follows an unsuccessful 2010 effort to get the HIV transmission law entirely removed from the state code. This year, Iowa HIV/AIDs advocacy groups are working with the support of the Iowa Department of Public Health and the Iowa Attorney General’s office for modifications rather than outright repeal.

State Sen. Matt McCoy (D-Des Moines), could be the legislator to introduce a bill, although he says it’s a work in progress. He agrees with the need to catch up with modern medicine. “While at the time the law was based on what we knew, and I believe was necessary and fit the crime, so much has changed,” McCoy said. “It [the law] is now inappropriate and out of step with current public health knowledge, and our use of the law is out of step with the rest of the country. The law is overly punitive and harsh.”

Federal Law Prompted State Actions

Many states passed criminal statutes related to HIV in response to the Ryan White Care Act of 1990, which originally required states to prove they could prosecute transmission of the virus. Some states said they could rely on existing laws, while some passed laws increasing penalties for existing offenses (such as prostitution and sexual assault) if HIV was involved.

Others such as Iowa developed laws specifically targeting HIV offenses—although Iowa did not make the move until the late 1990s, when an HIV positive New York man deliberately tried to spread the virus and prompted heavy news coverage. The defendant, Nushawn Williams, boasted of having sex with up to 300 women and girls and was found to have infected at least 16 people.

With bipartisan agreement that Iowa needed stronger means to prosecute an offender such as Williams, the Iowa legislature passed a statue with little controversy.

Nationwide, according to the U.S. Centers for Disease Control, deliberate and malicious HIV transmission cases are extremely rare. No case prosecuted in Iowa has come close to resembling the Williams case, and critics say that even if such a case did arise, other laws on the books would be more than sufficient.

Nick Rhoades’ case raises another problem with criminalizing non-disclosure – the difficulty of proving that somebody said or didn’t say something when courts must rely on assertions about private acts. Rhoades and his partner in the one-time encounter were under the influence of alcohol, and Rhoades says he honestly doesn’t remember if he told the other man that he was HIV positive or not.

Rhoades says he believes in full disclosure before sex, and did even before he was charged and convicted of criminal transmission of HIV. But he saidfailing to be upfront with a partner should not brand him a criminal.

“I’m worried that I’m going to be broke and sitting with this label tattooed across my forehead for the rest of my life,” he said.

Bogardus Said He Had Heart Problem

Bogardus, who grew up in Iowa and had been living in Atlanta for almost a decade when he contracted HIV. He found it hard to share the diagnosis even with close family members.

Moving back to his home state, where most of his 17 brothers and sisters still live, he told them he had a heart problem. They didn’t know he was HIV positive until they read the report of his arrest in the Waterloo-Cedar Falls Courier.

His frustrations with the charges against him are compounded by his own experience. The partner who infected him in Georgia failed to tell him about being HIV positive.

Under Georgia law, an HIV positive person who infects another with the virus may be convicted of “felony reckless conduct,” punishable by up to 10 years in prison.

Bogardus could have pressed charges. He didn’t.

“I mean, I was upset and devastated when I found out I was positive, but that is one of the risks you have to take for being with somebody,” he said.

Partner Regrets Complaint

Borgadus has heard that the Iowa partner who reported him now recognizes, belatedly, that the sentence for a conviction in an HIV criminal transmission case is “outrageous.”

“I was told that he wished that he wouldn’t have ever done this or turned me in,” Bogardus said. “He wished he would have waited to find out if he was alright or not.”

Nonetheless, Bogardus awaits his next court hearing in early March. He is being represented by a Black Hawk County public defender and says the possibility of a prison term keeps him up at night. He describes his time in jail following his initial arrest as the worst experience of his life.

“I was in maximum security in total isolation. They gave my food to me through a slot in the door,” he said. “When I was moved to general population, I never wanted to leave my cell, ate my meals in the corner by myself and cried myself to sleep. The other inmates called me ‘the poison man.’ The thought of having to live like that for longer than a few months is just terrible.”

For now, Bogardus said, he is trying to stay positive and focus on providing the best care he can for the patients at the nursing home where he works. “I just want this to all be over. I worry about what is going to happen and where I am going to be in a year.”With a grin, he added, “It’s not funny, but if I went to prison, I don’t know who would take care of my fish.”

(IowaWatch contributor Lindsey Moon is a research assistant for Iowa Public Radio and a senior at the University of Iowa with a double major in journalism and mass communication and anthropology)

Read Next

State legislators are expected to consider a bill to ease parts of a controversial Iowa law allowing
imprisonment of HIV-infected people for up to 25 years if they don’t reveal their condition
before having “intimate contact” with another person.

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